Long Bar Pointe developers look to reverse 2013 denial

MANATEE -- The developers of Long Bar Pointe are using a technical maneuver to reverse a 2013 decision by the Manatee County Commission that effectively killed their waterfront vision.

Long Bar Pointe, a project by Medallion Home President Carlos Beruff and Barrington Group's Larry Lieberman, hired eminent domain expert attorney S. William Moore to serve the county with a Bert J. Harris Private Property Rights Protection Act claim.

The claim comes right before the one-year anniversary of the marathon Long Bar Pointe public hearing at the Bradenton Area Convention Center, where more than 1,000 people starting showing up at 1:30 p.m. Aug. 6, 2013, to voice support and wave their hands against two comprehensive plan amendments. The meeting stopped just before 2 a.m. Aug. 7.

The amendments, one a text amendment and another a map amendment, sought permission to go to state land planning officials for review.

Moore is out of the office this week preparing for a trial and could not be reached for comment. Moore wrote to the commissioners in his Aug. 1 claim that the decision caused a property loss of $18 million in fair market value.

"On the face of the above-listed Comprehensive Plan Policies, the landowners-ap

plicant is clearly denied its common law riparian rights, historically associated with coastal lands in private ownership," Moore wrote.

If the county does not agree to begin the process to reconsider, Long Bar's developers are asking for a formal settlement offer from the county.

County Attorney Mickey Palmer and Assistant County Attorney Bill Clague are in the process of forming a response to the claim, and said they must first talk to the commissioners about the case before commenting.

In a letter to the commissioners sent Monday afternoon, Palmer said his office "will vigorously defend the decision of the Board in this matter."

"Since the Act allows the owners/developers to file a lawsuit in the Circuit Court, we advise Commissioners to refrain from discussing the matter with anyone unless accompanied by an attorney from this office," Palmer wrote. "We have made a similar recommendation to County staff within the Building & Development Services Department."

This is not Moore's first case against Manatee County. Moore's work includes representing Beruff on a land use case celebrated by local developers, in which he got Manatee County to pay Beruff $62,000 in impact fee credits plus $250,000 in legal fees concerning taking of a right-of-way land in Parrish.

Change of plans

What Long Bar Pointe could look like has changed since last year's hearing.

Appraisals performed on the property for the claim only include rights for 100,000 square feet of commercial space, 3,520 homes built on 18 twin-tower pad sites and a 260-slip marina and channel. The hotel, conference center, office space and single-family homes were deleted.

The statute requires an appraisal to be attached to the claim because the act allows government bodies to buy the land from the developer, or to use the assessments in reaching a settlement.

One of the appraisals, submitted by Bass & Associates of Sarasota, is for 528 acres, including 255 acres of uplands and 273 acres of wetlands or submerged lands doing an appraisal of the land "as if" that allows for 3,520 homes/condos and 100,000 square feet of commercial space. That appraisal shows a value of $49.9 million to $81.4 million. The other appraisal adds a channel and a 260-slip marina, and places the value at $66.4 million to $108.7 million.

Long Bar Pointe, which never filed a formal site plan with the county, wanted land use changes last year to allow up to 300 berths in a marina carved out of the land and adjacent mangroves, accessing Sarasota Bay via a channel 2,100 feet long, 45 to 60 feet wide and up to 5 feet deep. Unlike most properties in Florida, the Long Bar Pointe developers own 117 acres of submerged land abutting its property.

The text amendment, which covered 463 acres, would have affected the comprehensive plan's coastal and conservation elements that limit development in environmentally sensitive areas to mixed-use projects on lands 200 acres or more next to arterial roads, along a coastal line and navigable waters.

In last year's 13-hour hearing, county staff explained that the wording was vague and would have affected 42 properties in Manatee County spanning from Cortez Key east to Duette.

The map amendment was approved for transmittal, but Long Bar Pointe developers withdrew an appeal request. The developer would have to reapply to have the map amendment considered.

Hashing through Harris

The Harris Act is a complicated state measure that allows a landowner to tell a local or state body that it placed an inordinate burden on the landowner by restricting what can be done on the property.

In Long Bar Pointe's case, it's a matter of being able to access the water for commercial use, according to an attorney familiar with the case. The decision last summer essentially had the county deny creating a channel to access the land's potential for waterfront retail and a marina and hotel.

The notice of claim is the first step asking the county to fix the alleged wrongdoing, and the claim has to be made within one year of the alleged conduct.

Next steps

Once the claim is filed, the county has three months, or 150 days, to correct or consider correcting the claim. Of that, there are 11 ways provided by the act to respond, though all may not apply to this case:

1. Adjust land development, permit standards or other provisions controlling the use of land.

2. Increase or modify density, intensity or use of areas of development.

3. Transfer development rights.

4. Offer a land swap or exchange.

5. Offer mitigation including payments in lieu of onsite mitigation.

6. Location on least sensitive portion of property.

7. Condition the amount of development or use permitted.

8. Require issues to be addressed on a more comprehensive basis instead of a single proposed use or development.

9. Issue development order, variance, special exception or other extraordinary relief.

10. Purchase real property or an interest as compensation.

11. Make no change.

The commission could agree to reverse its decision to allow stage planning officials to review the amendment, preventing a lawsuit.

That could still lead to other moves, though, as a map amendment was requested and developers sought permission to apply for permits from other agencies to construct various components of Long Bar Pointe. Mediation and arbitration could come into play as part of the process, according to the act.

Failing all of that, the two sides could meet in court.

Charles Schelle, Herald business reporter, can be reached at 941-745-7095. Follow him on Twitter @ImYourChuck.

This story was originally published August 6, 2014 at 12:00 AM with the headline "Long Bar Pointe developers look to reverse 2013 denial."